Publisher Can’t Ignore Doubts on Story, Appeals Court Rules : Media: Although there is no obligation to investigate a story before publication, questions about accuracy must be resolved when raised, federal judges say.

In a significant 1st Amendment decision, a federal appeals court in San Francisco ruled Monday that once a publisher has doubts about the accuracy of a story, it cannot ignore those doubts before printing the article, even though it has no duty to investigate accuracy in the first place.

The ruling paves the way for a Berkeley psychoanalyst to go to trial against the New Yorker magazine, as well as one of its writers.

The decision stems from two December, 1983, New Yorker articles on psychoanalyst Jeffrey Masson, which precipitated a debate over an author’s right to alter quotes.

Masson alleged in a $10-million libel suit filed in San Francisco federal court that author Janet Malcolm fabricated several quotes that made him appear irresponsible, vain, unscholarly and lacking in integrity. The unflattering profile described how Masson was fired from his position as projects director of the Sigmund Freud Archives after adopting positions on Freud that earned him the enmity of the traditional psychoanalytic community.

Initially, the case was thrown out by a federal judge whose decision was sustained by the U.S. 9th Circuit Court of Appeals.

Last year, however, the U.S. Supreme Court reinstated Masson’s suit. The high court said he is entitled to a trial against Malcolm on five challenged quotations, in a decision holding that deliberately altering quotes can be libelous if the speaker’s meaning was materially changed.

Among the challenged quotes were Masson’s alleged description of himself as an “intellectual gigolo” and another when he supposedly said he wanted to turn the Freud Archives into a “place of sex, women and fun.”

The issue at a trial would be whether Masson’s statements in interviews had been altered sufficiently when printed so that a jury could conclude that they were published with “actual malice.”

In Monday’s decision, the U.S. 9th Circuit Court of Appeals said that Masson might prove a reckless falsehood by showing that he complained about quotes in a draft of the article to a New Yorker fact-checker and that the magazine had failed to double-check them against Malcolm’s tape recordings and notes.

The judges disagreed with New Yorker attorney Charles A. Kenady of San Francisco, who contended that the magazine had a right to rely on the accuracy and integrity of Malcolm, whom he described as “a writer with a good reputation” who had written many articles for the magazine.

Masson’s lawyer, Charles O. Morgan Jr., countered that the magazine “in fact entertained serious doubts as to the truth of (its) publication.”

In a 3-0 decision, the 9th Circuit ruled that Masson had presented sufficient evidence of the New Yorker’s doubts about the articles’ accuracy to warrant a jury trial to determine if the magazine published the stories with “actual malice.”

Ninth Circuit Judge Alex Kozinski said the New Yorker had been put on notice about possible problems with the articles after Masson challenged the accuracy of some of the quotations read to him by Nancy Franklin, the magazine’s fact-checker. Judges Arthur L. Alarcon and Carla Holcomb Hall joined in the opinion.

Masson also alleged that Franklin promised to get back to him about some of his objections and said the fact-checker told him that all of the quotes would be verbatim from tapes. The psychoanalyst offered evidence that some of the corrections he suggested were adopted on drafts of the articles but changed back when the magazine was published.

Kozinski acknowledged that under Supreme Court precedents, the magazine had no obligation to conduct an investigation of accuracy. And he said that normally the mere protestations of a story’s subject are not enough to support an inference that the magazine entertained doubts about accuracy. Nonetheless, Kozinski said, once an inquiry is launched and “once doubt exists, however, the publisher must act reasonably in dispelling it.”

The judge acknowledged a certain anomaly in the ruling. “We are aware that this (decision) puts publishers like the New Yorker--whose practice it is to investigate the accuracy of its stories--at somewhat of a disadvantage compared to other publishers, such as newspapers and supermarket tabloids, that cannot or will not engage in thorough fact-checking,” Kozinski wrote.

But the judge said this stiffer standard was appropriate because “readers of reputable magazines such as the New Yorker are far more likely to trust the verbatim accuracy of the stories they read than are the readers of supermarket tabloids or even daily newspapers. The harm inflicted by a misstatement in a publication known for scrupulously investigating the accuracy of its stories can be far more serious than a similar misstatement in a publication known not to do so.”

Ironically, unlike the New Yorker, Alfred A. Knopf Inc., which republished the articles in a 1984 book entitled “In the Freud Archives,” will not have to undergo a trial even though the book publisher knew of Masson’s complaints, Kozinski wrote. It was entitled to rely on the New Yorker’s “sterling reputation for accuracy and the existence of its fabled fact-checking department,” he wrote.

Rodney A. Smolla, a libel law specialist at the College of William and Mary Law School in Virginia, praised the decision, saying: “I think it’s a reasonable opinion and one that is basically in sync with existing law.”

But Los Angeles lawyer Rex Heinke, who represents the Los Angeles Times, said the decision “in effect, imposes a duty to investigate in certain circumstances, which is squarely contrary to controlling Supreme Court authority.”

Attorney Floyd Abrams, a 1st Amendment specialist who represents the New York Times, also criticized the ruling.

“I find nothing in the opinion which persuades me that the New Yorker knew or had reason to know anything it published was false,” Abrams said, unless the court decision means that a case will go to a jury anytime a person who is the subject of a story complains during the fact-checking process.